Nnanta Orianwo V. L. O. Okene (2002)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, JSC

In Suit No. PHC/119/81 in the Port Harcourt Judicial Division of the High Court of Rivers State, Nnanta Orianwo, Richard Wosu, Franklin Amadi, Thomas Acho and Boniface Elewa, for themselves and on behalf of Rumuorianwo Wogozo Family (hereinafter are referred to as Plaintiffs) sued L. O. Okene, Harrison Okene and Maxwell Okene, for themselves and as representing the Okene Amadi Family (hereinafter are referred to as Defendants), claiming as per paragraph 24 of their amended statement of claim:

“(i) A declaration of the plaintiffs customary right of occupancy to all that piece or parcel of land known as and called ‘Ohia Otuloro’ lying and situate at Rumuokwurusi, Obio, Port Harcourt, which said piece or parcel of land is more particularly delineated and verged red on the survey plan No. FO/1A/82 L.D. annexed to this statement of claim.

(ii) N50,000.00 (fifty thousand Naira) being general damages for trespass committed by the defendants on the portion of the plaintiffs said land outside the area verged brown on the said survey plan;

(iii) A perpetual injunction to restrain the defendants and each of them whether by themselves, their servants, agents or otherwise howsoever from entering the plaintiffs said land or ever interfering with the plaintiffs in their possession, occupation, use and enjoyment of their said land, save and except the said portion of land verged brown.”

Pleadings were filed and exchanged and, with leave of court, amended.

Shortly after the above suit was instituted, Harrison Okene and Emmanuel Okene, on behalf of themselves and other members of Okene Family instituted a cross action in suit No. PHC/126/81 CLAIMING FROM Fyneface Lawa, Cyprian Lawa and James Achor:-

“1. the sum of N20,000.00 as special and general damages for trespass committed on the Plaintiffs’ land known as ‘OTULORO’ situate at Rumuwokerebe Village, Rumuokwurusi within the jurisdiction of this Honourable Court;

2. perpetual injunction restraining the defendants, their privies, agents and servants from further acts of trespass on the said land.”

Following the death of Harrison Okene, Lawrence Okene was by order of court substituted in his place. Pleadings were ordered, filed and exchanged and, by leave of court, amended. The plaintiffs in the action also filed a reply to the statement of defence.

As the two actions related to the same land and were between the same families, the suit No. PHC/126/81 was, on the application of learned counsel for the parties in the case, transferred by order of court to the court handling suit No. PHC/119/81 presided over by Ungbuku, J. as he then was. And on the application of plaintiffs in suit No. PHC/126/81 and defendants in suit, No. PHC/119/81, the two suits were, by order of court made on 31/10/85, consolidated. It was further ordered that-

“By this consolidation the Plaintiffs in Suit PHC/119/81 are the Plaintiffs and the defendants in the said suit who are plaintiffs in Suit No. PHC/126/81 are the defendants”

At the trial, Plaintiffs called 6 witnesses in support of their case. The Defendants called 5 witnesses. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial judge (Ungbuku, J) in a well considered judgment found for the Plaintiffs and entered judgment in their favour in terms of their claims in Suit No. PHC/119/81; he dismissed the Defendants’ suit No. PHC/126/81.

The Plaintiffs’ case is that one Wokerebe was the original owner of the land known as “Ohia Otuloro” in Rumuokwurisi Village, Obio, Port Harcourt. Wokerebe (or Okerebe) lived many years ago. At his death he left behind 9 sons named (in order of seniority by age) Wosu, Wogozo, Ikeani, Wuche, Chukwuntu, Amadi, Wolu, Ndumati and Okekem. The Plaintiffs descended from Wogozo while the Defendants descended from Amadi. Only Wosu, Wogozo, Ikeani and Wuche were adults at the time of the death of their father Wokerebe and it was only these four sons that performed the burial rites of their father and took part in the sharing of his estate. The other five sons being minors, did not share in the estate of Wokerebe; they were instead given to the older sons as wards. Amadi, Defendants’ ancestor was given as ward to Ikeani who took him in and gave him land to settle upon. It is the case of the Plaintiffs that according to Ikwerre custom only male children who performed the burial rites of their father can inherit his estate. The five sons of Wokerebe, that is, Chukwunta, Amadi, Wolu, Ndumali and Okekem, being minors at the time Wokerebe died, did not take part in his burial rites and, therefore, did not inherit in his estate. Wokerebe’s lands were shared between Wosu, Wogozo, Ikeani and Wuche. The land “Ohia Otuloro” was shared between Wosu and Wogozo; an ancient footpath marked their boundary.

When Amadi was living with Ikeani, he committed adultery with Ikeani’s wife for which Ikeani drove him away from his land. Amadi sought refuge with Wogozo who gave him part of his “Ohia Otuloro” to settle. Amadi soon got into another trouble. Wogozo had died then and had been succeeded by his son Orianwo. Amadi killed the cow of one Chief Okpoko of Maleri village and dumped the carcass in a pit. Chief Okpoko grew annoyed and invoked his “juju” to punish the wrongdoer. The juju killed some of Amadi’s children; only his son Okene escaped death. Amadi, in fear of his life, had to run back to Ikeani’s land with his son Okene. Ikeani had died then. Amadi was taken back and resettled on the old land given him by Ikeani. There he lived and died and was buried. His son Okene also lived there. When Okene’s family grew large and the land became insufficient for them to live on, Okene in 1946 approached the Plaintiffs family for permission for his children to reoccupy part of Plaintiffs’ land that was previously given to his father, Amadi by Wogozo. Onyenweibea was the head of Plaintiffs’ family at that time. Onyenweibea gave permission to Okene who settled thereon his children Harrison Okene, Maxwell Okene and Emmanuel Okene, all of whom built houses on the land. The portion of Ohia Otuloro given to Amadi and on which Okene’s children later settled is demarcated on Plaintiffs’ land Exhibit A in this case. Plaintiffs remained in possession of the rest of Ohia Otuloro belonging to them. Okene and his first son Isiah Okene lived and died in Ikeani’s compound and were buried there.

In 1964 it was discovered that someone had planted some palm tree seedlings on the land. As the plantation did not belong to any member of Plaintiffs’ family, they went on the plantation and cut down the seedlings. Emmanuel Okene who owned the plantation did not complain nor sue the Plaintiff’s. Some of the palm tree seedlings survived and in 1971 Plaintiffs again went on the plantation and destroyed those that survived. Some members of Plaintiffs’ family later built on portions of the land without any disturbance from the Defendants or any one else. One of the houses was occupied by one Dr. Kolade who was running a medical clinic there. People around the area including the Defendants, attended Dr. Kolade’s clinic. In 1981, Charles Okene of the Defendants’ family went outside the area given his family to build on the land in Plaintiffs’ possession. The Plaintiffs protested and subsequently instituted the action leading to this appeal.

The Defendants admitted the history that Wokerebe was the common progenitor of the parties and the original owner of Ohia Otuloro. They also admitted that Wokerebe died and left behind 9 sons. They gave the names of the 9 sons as Wosu, Wogozo, Ikeani, Nwuche, Chukwurutu, Okene, Amadi-Ndukuru, Amadi-Wolu and Ndumati. They admitted that the Plaintiffs descended from Wogozo but claimed that their own ancestor was Okene and not Amadi as claimed by the Plaintiffs. They admitted in evidence that when Wokerebe died only the first four children were married and owned their own houses; the remaining 5 sons, including Amadi their ancestor, were not married then and had no houses of their own because they could not afford it. They claimed, however, that all the 9 sons inherited their father’s estate and that the land Ohia Otuloro was given to Amadi, their ancestor. Okene, Wokerebe’s son begat Amadi who in turn begat Okene, Nwosu, Enwudebe and Enwumelu. They claimed that when Okene died his son Amadi continued to live on the land Ohia Otuloro inherited by Okene. They also claimed that Amadi’s slaves killed a cow belonging to Okpoko and the latter in consequence invoked his juju. The juju killed Amadi and three of his children, leaving only his son Okene. Amadi left Okene in the care of Amadi Ikeani, his relation. On the death of Amadi Okene and for fear of Okpoko, Amadi Ikeani took Okene into his care and gave him land to settle on. Okene grew up, and lived in Ikeani’s compound and raised up his family there. He did not return to Ohia Otuloro. In 1946 when the land given to him in Ikeani’s compound could not contain his family, he took some of his sons to build houses on Ohia Otuloro and to live there. Okene lived, died and was buried in Ikeani’s compound. His children, Harrison Okene, Maxwell Okene and Emmanuel Okene built houses on Ohia Otuloro and in 1963 established a palm plantation on the land. They harvested the plantation until 1981 when Plaintiffs came to set it on fire. James Achor and Nwanele also came on the land and started to erect buildings on it. As a result of these acts they instituted their action PHC/126/81.

The Defendants admitted in evidence that according to Ikwerre custom any male child who does not participate in the burial rites of his father does not inherit in the father’s estate. They also admitted that some members of Plaintiffs’ family built on the land, particularly the one occupied by Dr. Kolade and they did nothing about it.

In his judgment, the learned trial judge after a review and evaluation of the evidence before him, found:

1. “I am convinced from the facts and circumstances of this case that the defendants are of the lineage of that son of Wokerebe called Amadi by the plaintiffs or Okene by the defendants.
2. “It is in evidence that the nine families, descendants of the nine sons of Wokerebe are existing still as separate identities. Corroborative evidence of whether Amadi or Okene was a direct son of Wokerebe can easily be got from any of the other family groups. It is only the plaintiffs who called Chief Abel Nwosu PW4 to corroborate their version. Chief Abel Nwosu is from Rumuwosu family, the first son of Wokerebe. Chief Jonathan Sam Amadi DW5, the defendants called, admitted that Wokerebe had nine children but did not mention their names.

The version of the plaintiffs on this issue is better preferred to that of the defendants.”

3. “I am convinced from the facts and circumstances so far considered, to hold that the traditional history of the plaintiffs, placed side by side with that of the defendants, is more probable to the truth than that of the defendants.”
4. “…….the poultry house, of Emmanuel Okene, the house of Harrison Okene and Maxwell Okene are all built within the residential area of the defendants. The said houses are clearly shown in all the Survey plans, Exhibits A, B, C & D, tendered in evidence. From Exhibits A, B, C and D and the evidence of plaintiffs, the land in dispute excludes the residential area of the defendants. The residential area of the defendants is verged Brown in plaintiffs plan Exh. A, and is to the east of the land in dispute. The land in dispute is verged yellow in Exh. ‘A’ and it is only Charles Okene’s house that is there within. That house is the cause of action in PHC/119/81′
5. “It is true that Emmanuel Okene made a palm plantation on the land in dispute sometime 1963/64 but I do not accept the defendants claim that the said plantation was of 20 acres or as shown in their plans.”
6. “The defendants have not enjoyed uninterrupted acts of ownership and enjoyment over the land in dispute.”
7. “The defendants silence in their pleadings as regards these acts of the plaintiffs, is indicative of admission of the facts the plaintiffs assert.”
8. “The land in dispute as shown in all the survey plans tendered in evidence is almost identical, particularly the boundaries. On the north is the land of the plaintiffs, on the east is the residential area of the defendants, on the south is Rumuwosu family land and on the west is defendants land acquired from Rumucheta family in Mbuesilaru Village.”
9. “On the whole it was plaintiffs alone that called witnesses to prove the boundaries of the land in dispute.”
10. “I am inclined to believe and I do accept that the eastern boundary of the land in dispute is that shown in Exhibits A and B, the plaintiffs Survey plans.”
11. “I have considered the evidence of both parties on traditional history, acts of ownership, possession and enjoyment and of boundaries, over the land in dispute and I am convinced thereby to hold that the plaintiffs have proved their title, and possession over the land in

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dispute and are therefore entitled to judgment.”

The learned trial Judge observed that, going by the case of the defendants, they appeared to be “a people trying to extend their territorial boundaries as a result of population growth”. It is upon the above findings that the learned trial Judge entered judgment for the Plaintiffs and dismissed the claims of the Defendants in Suit No. PHC/126/81. After entering judgment for the Plaintiffs, the learned Judge added:

“I make no particular order in respect of Charles Okene’s house which was completed during the tendency of this case because the plaintiffs did not ask for a particular relief.”

The Defendants were dissatisfied with the judgment against them and appealed to the Court of Appeal. The Plaintiffs, too, were not happy with the trial Judge’s addendum to his judgment on Charles Okene’s house and appealed against that part of the judgment.

The Court of Appeal allowed the Defendants’ appeal, set aside the judgment of the trial Court and entered judgment for the Defendants in the sum of N1,000.00 as general damages for trespass and injunction as claimed in Suit No PHC/126/81. The Court dismissed Plaintiffs’ claims in Suit PHC/119/81 and their cross appeal. In resolving the appeal before it, the Court of Appeal found, per Nsofor JCA who read the lead judgment of that Court:

1. “The trial Judge stated the issues, narrowly in my view, when he said:-

‘The name of the defendants’ ancestor to my mind is lesser evil than the issue of inheritance. The crucial question is whether or not the defendants’ ancestor by whatever name called, was a minor at the death of his father and inherited nothing from the father’s estate because he did not perform the burial rites of the late father.’

The issue, with due deference to the trial Judge was so narrowly formulated that he appeared to overlook gravamen of the contest, the back of it all on the pleadings and evidence as led. Each party had traced its genealogical history differently. The appellants have consistently maintained that Okene, through whom they claim the land in dispute, was a son of Wokerebe, and, that Amadi, whom the respondents asserted was their (appellants’) ancestor and, son to Wokerebe, was the son of Okene. Therefore, who or what Amadi was became material. So also, who or what Okene was, was material before it would be resolved whether either Amadi or Okene performed the burial rites of Wokere be. Unless and until it be found one way or the other, based on the evidence, who performed any rites and so entitled to participate in the partition of the Wokerebe’s lands would be a subsidiary question, a corollary to the principal question of who was who and, so what.”

2. “….the respondents, qua plaintiffs in the Suits as consolidated, not having proved the Ikwerre native law and custom on which they hoisted their claims in the context I discussed above, and the failure of the trial court to make findings on material and vital facts, it is my judgment, that judgment ought to be entered in favour of the appellants, qua defendants in the Suits as consolidated.”

It would appear that it is upon these two findings that the Court below disturbed the judgment of the trial High Court. This is manifested in the judgments of Nsofor JCA and Katsina-Alu JCA, as he then was. Uwaifo JCA, as he then was, appeared to add another issue, failure to prove the certainty of the land claimed by Plaintiffs, as another factor for finding against the Plaintiffs

The Plaintiffs have now appealed to this Court against the judgment of the Court of Appeal upon 6 grounds of appeal contained in a Notice of Appeal filed with the leave of this Court. The Parties filed and exchanged their respective briefs of argument; the Plaintiffs also filed a Reply Brief. The Plaintiffs formulated 6 questions as arising for determination in this appeal, to wit:

“1. Whether the learned Justices of the Court of Appeal were right in allowing the appeal on the ground that the trial Court had failed to make a finding of fact on the issue of the status of Amadi and Okene, when a finding of fact on that issue was actually made by the trial Court.

2. Whether the failure by the learned Justices of the Court of Appeal to consider the vital issue of ‘on whom the land in dispute vested on the death of Wokerebe’ had not occasioned a great miscarriage of justice.
3. Assuming that the issue as to the status of Amadi and Okene was not resolved by the trial Court, were the learned Justices of the Court of Appeal right in entering judgment for the Defendants/Respondents, having not by themselves resolved the issue in favour of the Defendants/Respondents?
4. Were the learned Justices of the Court of Appeal right in entering judgment for the Defendants/Respondents on the ground of the non-pleading by the Plaintiffs/Appellants of the Ikwerre Native law and custom of burial rites of deceased persons when what were the said burial rites had never been an issue in the case.
5. Were the learned Justices of the Court of Appeal right in not considering the Plaintiffs/Appellants cross-appeal and in making an order striking out the cross-appeal?
6. Were the learned Justices of the Court of Appeal right to have awarded damages to the

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Defendants/Respondents in trespass and in making an order of injunction against the Plaintiffs/Appellants?”

The Defendants formulated 5 questions in their brief. I have compared their set of questions with that of the Plaintiffs. The two sets of questions raise more or less identical issues. I am, however, satisfied that, having regard to the grounds of appeal and the judgment appealed against, Plaintiffs’ set of questions is to be preferred.

I now come to consider the questions raised in this appeal. And in doing so I shall take Questions 1, 2 and 3 together.

‘Questions 1, 2 and 3:

Nsofor JCA in his lead judgment had criticised a passage in the judgment of the trial court where that Court had indicated that the crucial question in the case before it was whether or not the Defendants’ ancestor inherited nothing from Wokerebe’s estate. I have quoted earlier in this judgment what Nsofor JCA said. But for case of reference I shall quote it here again:

The learned Justice of the Court of Appeal wrote:

“The trial Judge stated the issues, narrowly in my view, when he said:-

‘The name of the defendants’ ancestor to my mind is lesser evil than the issue of inheritance. The crucial question is whether or not the defendants’ ancestor by whatever name called, was a minor at the death of his father and inherited nothing from the father’s estate because he did not perform the burial rites of the late father.

The issue, with due deference to the trial Judge was so narrowly formulated that he appeared to overlook gravamen of the contest, the back of it all on the pleadings and evidence as led. Each party had traced its genealogical history differently. The appellants have consistently maintained that Okene, through whom they claim the land in dispute, was a son of Wokerebe, and, that Amadi, whom the respondents asserted, was their (appellants’) ancestor and, son to Wokerebe, was the son of Okene. Therefore, who or what Amadi was became material. So, also, who or what Okene was, was material before it would be resolved whether either Amadi or Okene performed the burial rites of Wokere be. Unless and until it be found one way or the other, based on the evidence, who performed any rites and so entitled to participate in the partition of the Wokerebe’s lands would be a subsidiary question, a corollary to the principal question of who was who and, so what.”

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SC. 116/1998